United States of v. Epps

Filing 8

Memorandum and Order denying 7 Motion. Ordered by Judge Nicholas G. Garaufis on 8/22/2014. (Brown, Marc)

D/f
IN CLERK'S OFFICE
U.S. DISTRICT COURT E.O,N,V

*

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK

---------------------------------------------------------------------){
UNITED STATES OF AMERICA,

AUG 2 2 2014

*

BROOKLYN OFFICE

Plaintiff,

MEMORANDUM & ORDER

-against-

97-CV-4117 (NGG)
JAMES EPPS a/k/a JAMES E. EPPS Jr.,
Defendant.

---------------------------------------------------------------------){

NICHOLAS G. GARAUFIS, United States District Judge.

Before the court is prose Defendant James Epps's letter requesting that the default
judgment entered against him on December 19, 1997, be vacated. (Mot. to Vacate Default J.
("Mot. to Vacate") (Dkt. 7).) The court construes this letter as a motion to set aside a default
judgment pursuant to Federal Rules of Civil Procedure SS(c) and 60(b). For the reasons set forth
below, Defendant's motion is DENIED.

I.

BACKGROUND
On July 21, 1997, Plaintiff the United States of America filed an action against Defendant

for ajudgment in the amount of$1,814.57 for unpaid student loans and interest accrued through
July 8, 1997. (Comp!. (Dkt. 1) at I.) The case was originally assigned to Judge David G.
Trager. According to the Affidavit of Service, Defendant was served with the Summons and
Complaint on August 27, 1997, thirty-seven days after the Complaint was filed. (Aff. of Service
(Dkt. 2) at 1.) Service was made by a non-party professional process server who was over
eighteen and delivered of a copy of the Summons and Complaint to "Jane Doe," a co-tenant at 80
Dwight Street, Apartment 7G, Brooklyn, NY, which at the time was Defendant's "usual place of
abode." (!Jh) Doe appeared to be forty-nine years of age and of suitable discretion but refused to
give her name. (Id.) The process server confirmed through conversation with Doe that
I

Defendant was not in the military. (Id.) The Summons and Complaint were also mailed to
Defendant at the same address via first class mail. (Id.) Plaintiff filed proof of service on
September 11, 1997.
Defendant did not answer the Complaint or otherwise appear in the action. On
December 18, 1997, Plaintiff moved for default judgment. (Mot. for Default J. (Dkt. 4).) The
Clerk of Court entered a certificate of default on the same day. (Dkt. 5.) Finding that "the
summons and complaint in this action ha[ d] been duly served on the ... defendant ... and said
defendant ha[d] failed to plead or otherwise defend in this action," on December 19, 1997, Judge
Trager ordered default judgment against Defendant in the amount of$1,945.09. (Default J. (Dkt.
5).) This sum represented the principal on the Joan of$1,016.34, plus interest of$827.12, and a
10% statutory surcharge of$101.63. @.)
On July 2, 2014, more than sixteen years after the entry of judgment, Defendant filed his
Motion to Vacate. Defendant claims that he "never received any documents about the case and
do[es] not know anything about it." (Mot. to Vacate at 1.) The case was reassigned to this court.
II.

DISCUSSION

Federal Rule of Civil Procedure 55(c) allows the court to set aside a default judgment in
accordance with Rule 60(b ), which provides that "[ oJn motion and just terms, the court may
relieve a party ... from a final judgment, order, or proceeding for the following reasons:
( 1)
(2)
(3)
(4)
( 5)
(6)

mistake, inadvertence, surprise, or excusable neglect;
newly discovered evidence which by due diligence could not have
been discovered in time to move for a new trial ... ;
fraud[,] ... , misrepresentation, or misconduct by an opposing party;
the judgment is void;
the judgment has been satisfied, released or discharged ... ; or
any other reason that justifies relief."

2

Fed. R. Civ. P. 60(b). However, such motions are "generally not favored and [are] properly
granted only upon a showing of exceptional circumstances." Pichardo v. Ashcroft, 374 F.3d 46,

55 (2d Cir. 2004) (quoting United States v. Int'I Bhd. of Teamsters, 247 F.3d 370, 391 (2d Cir.
2001) (internal quotation marks omitted)). Defendant bears the burden of proving such
circumstances, id., though the court will construe his filings liberally in recognition of his pro se
status, see McPherson v. Coombe, 174 F.3d 276, 280 (2d Cir. 1999).
A.

Defendant's Motion is Timely

Construing Defendant's motion liberally, the court interprets it to argue pursuant to Rule
60(b)(4) that the default judgment is void because Plaintiff failed to adequately serve process and
therefore the court lacked personal jurisdiction over Defendant. See Trs. of Local 531 Pension
Fund v. Am. Indus. Gases, Inc., 708 F. Supp. 2d 272, 275 (E.D.N.Y. 2010) (construing
defendant's motion claiming he never received the summons and complaint as a Rule 60(b)(4)
motion alleging lack of personal jurisdiction due to improper service); Arista Records, Inc. v.
Musemeci, No. 03-CV-4465 (DGT) (RML), 2007 WL 3124545, at *2 (E.D.N.Y. Sept. 18, 2007),
report and recommendation adopted, 2007 WL 3145861 (E.D.N.Y. Oct. 25, 2007) (same).
A motion under Rule 60(b)(4) must be brought within a "reasonable time." Fed. R. Civ.
P. 60(c)(l). "Courts have been exceedingly lenient in defining the term reasonable time, with
regard to voidness challenges. In fact, it has been oft-stated that, for all intents and purposes, a
motion to vacate a default judgment as void may be made at any time." Am. Indus. Gases, 708
F. Supp. 2d at 275 (quoting Beller & Keller v. Tyler, 120 F.3d 21, 24 (2d Cir. 1997)). Therefore,
despite Defendant's significant delay in bringing this motion, the court will accept it as timely.

3

B.

Defendant's Motion Is Without Merit

"[I]f service upon a defendant was improper, the court lacks personal jurisdiction over
that defendant, and a default judgment entered against him must be vacated." United States v.
Cally, 197 F.R.D. 27, 28 (E.D.N.Y. 2000). Under Federal Rule of Civil Procedure 4(e)(l), a
plaintiff may serve an individual by "following state law for serving a summons in an action
brought in courts of general jurisdiction in the state where the district court is located or where
service is made" or by "leaving a copy of [the summons and complaint] at the individual's
dwelling or usual place of abode with someone of suitable age and discretion who resides there."
Fed. R. Civ. P. 4(e)(I), (2)(8). New York law permits a natural person to be served through a
two-step process: (I) delivering the summons to "a person of suitable age and discretion at the
actual place of business, dwelling place or usual place of abode of the person to be served," and
(2) mailing a copy of the summons to that person's "last known residence." N.Y. C.P.L.R.

§ 308(2).
Here the process server's sworn affidavit demonstrates that Defendant was served in
accordance with both federal and New York law. A copy of the Summons and Complaint was
left with a forty-nine-year-old woman of suitable discretion at Defendant's usual place of abode,
and a second copy was mailed to Defendant at the same address. (Aff. of Service at I.)
Defendant has offered no evidence contradicting this account or demonstrating that he did not
reside at the address in question at the time of service, offering only unswom statements that he
did not know about the case. (See Mot. to Vacate at I.) "[C]ourts require that the evidence in
support of the motion to vacate a final judgment be 'highly convincing,"' Kotlicky v. United
States Fid. & Guar. Co., 817 F .2d 6, 9 (2d Cir. 1987) (citation omitted), and Defendant's bare
bones motion falls short of this standard. Given the lack of credible evidence supporting

4

Defendant's motion and the seventeen years that have elapsed since the events surrounding
service of process, the court does not believe that a hearing to develop the factual record
concerning service would prove useful at this time.
Should Defendant elect to renew his Rule 60(b)(4) motion, he must include evidence
demonstrating why service was improper in this case. The evidence shall be in the form of a
sworn affidavit and/or documentary evidence.

III.

CONCLUSION
Defendant's motion for relief pursuant to Rule 60(b)(4) accordingly is DENIED.
SO ORDERED.

s/ Judge Nicholas G. Garaufis
ICHOLAS G. GARAUF ~
nited States District Judge

Dated: Brooklyn, New York
Augusto?b, 2014

5